Trial Motion Practice Pointers Part II: Post-Trial Motions
By Taylor N. Barr and Betsy P. Collins – January 27, 2014
The blow of an unfavorable or unexpected judicial decision can be softened by the prospect of a favorable appeal. However, no matter how strongly the trial attorney is convinced of an incorrect verdict and/or error on the part of the trial judge, for the appellate court to review the merits of the case on appeal, the trial lawyer must first lay the groundwork for a thorough record that is properly preserved for review. As a general rule, appellate courts will not review any issue not presented to the trial court. Thus, preservation issues arise at the earliest stages of a case—from the time you raise 12(b) defenses in a responsive pleading—through pretrial motions, in-trial motions and objections, and post-trial motions. Part I of this article, covering pretrial and in-trial motions, appeared in the Winter 2013 issue of Pretrial Practice and Discovery. What follows in this second installment is an overview of the primary post-trial motions that can reverse, remit, or alter a judgment, or that at least will preserve the key issues for a second look.
Motion for Judgment as Matter of Law (JML)—Rule 50(a),(b)
This cousin to the summary-judgment motion is a motion that, though seldom granted at trial, serves an important role in the life of the case beyond trial. For clarity, JML motions are often still referred to by their former names. The motion filed during trial under Rule 50(a), asking the judge to take the case away from the jury based on insufficiency of the evidence on a claim or defense, was formerly a “directed verdict” motion. The renewed JML motion that follows a jury verdict under Rule 50(b) was referred to as a “judgment notwithstanding the verdict,” or JNOV. The rule change that provided the new motion names was solely technical, so case law referring to directed verdicts or JNOV remains valid.
When Do I Submit a JML Motion?
The Federal Rules of Civil Procedure (and the states that follow them) allow for a JML motion to be filed at any time before submission of the case to the jury. However, the standard required to win the motion is the absence of a “legally sufficient evidentiary basis” for a reasonable jury to find for a party on an issue without which they cannot win. Thus, the party must have been fully heard on the issue put forth in the motion. For all practical purposes, this means that you should file a JML motion at two specific times: (1) at the end of the plaintiff’s case, and (2) at the close of all evidence.
Prior to the 2009 amendments to the Federal Rules of Civil Procedure, the renewed motion for judgment as a matter of law had to be filed within 10 days of the judgment being rendered. However, the rule now allows a party 28 days to file a Rule 50(b) renewed JML motion and/or a motion for new trial. Fed. R. Civ. P. 50(b), (d).
Mechanics of the JML
Put it in writing. A Rule 50(a) motion for judgment as a matter of law can be made upon oral motion. However, for purposes of clarity, a written motion is the best practice. A Rule 50(b) Motion for Judgment as a Matter of Law must be in writing.
The standard. All inferences must be drawn in favor of the non-moving party. Thus, credibility determinations cannot be a factor, nor can the court engage in weighing the evidence. Remember, the judge can only usurp the role of the jury if “a reasonable juror” would not have a sufficient evidentiary basis to find for a party on an issue.
Be specific. The motion must specify the judgment sought and the law and the facts that entitle the movant to the judgment. When writing a Rule 50(b) renewed motion for JML, keep in mind that the person reviewing your motion is the same person who denied your first JML motion. Pointing to specific evidence in the trial record precluding a jury question, and/or highlighting case law that dictates a judgment as a matter of law, will provide you the opportunity to give the judge an out with minimal insult.
Be thorough. A “renewed” motion for judgment as a matter of law under Federal Rule of Evidence 50(b) (which you file if the jury finds against your client), as the name implies, is limited to the grounds raised in your original JML motion filed at trial. See 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2357, at 344–45 (2d ed. 1995). Motions that fail to raise all grounds at the trial level can and often do result in waiver at the appellate level. See, e.g., Davignon v. Clemmey, 322 F.3d 1, 14 (1st Cir. 2003). In particular, failure to renew a sufficiency-of-the-evidence argument in a Rule 50(b) motion, as the losing party, has often resulted in waiver. See Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 573 (5th Cir. 2002). Thus, the bottom line is that to prevent any potential waiver issues, it is imperative for the losing party to raise all potential issues (including constitutional arguments and damages arguments) both during trial and after the judgment.
Avoid technicalities. Frequently, if a party moves for JML based on a mere technicality that could be cured by the opposing party, courts simply will allow the plaintiff to reopen the case and cure the technicality.
Motion for a New Trial—Rule 59
If the court does not grant the Rule 50(a) JML motion, a motion for a new trial may be filed separately, in conjunction with or as an alternative to the 50(b) renewed judgment as a matter of law. Fed. R. Civ. P. 59, 50(b). (The same 28-day post-judgment window applies in federal court.) A motion for new trial should set out specific issues that occurred at trial and that have previously been grounds for a new trial “in an action at law in federal court.” Fed. R. Civ. P. 59(a). A court faced with a renewed motion for judgment as a matter of law, or a motion for a new trial, has three options: (1) allow the verdict to stand if one was rendered, (2) order a new trial, or (3) direct the entry of a judgment as a matter of law. Thus, in making this type of motion, you will set out your sufficiency-of-the-evidence arguments as part of your JML motion, and then separately identify specific grounds of error that entitle your client to a new trial. If the court grants the motion for judgment as a matter of law, it must also rule on any motion for a new trial and provide specific grounds for the grant or denial of such motion in case the judgment is later overturned at the appellate level. Fed. R. Civ. P. 50(c).
Courts apply a more lenient standard in granting a motion for a new trial, in contrast to a JML motion, because the relief is simply to do it all over again. In considering the motion, the court may consider the credibility of witnesses and can, in a limited capacity, weigh the evidence to prevent a miscarriage of justice. Additionally, grounds for a motion for new trial do not have to be pled by the close of evidence; thus, the court may consider the motion whether or not a JML was properly filed at trial.
While some state rules of civil procedure provide specific grounds for a motion for a new trial, the federal rules only limit the grounds to the common law. Fed. R. Civ. P 59. The following grounds are commonly raised:
- • verdict against the weight of the evidence
- • excessive or insufficient verdict
- • newly discovered evidence
- • conduct of counsel that tainted the case
- • jury misconduct
- • verdict based on false testimony
- • unfair surprise
- • substantial errors in the admission/rejection of evidence
- • giving or failure to give jury instructions
The issue of damages can be addressed by a court in a number of ways within the framework of a motion for a new trial. Courts often will grant a motion for a new trial in part only on the issue of damages. Additionally, though not expressly sanctioned by Rule 59, a court may condition the denial of a motion for a new trial on the plaintiff’s acceptance of a remittitur. 11 Wright & Miller, Federal Practice and Procedure § 2815. If the plaintiff agrees to the remittitur, he or she waives the right to appeal that issue. Donovan v. Penn Shipping Co., Inc., 429 U.S. 648 (1977). If the plaintiff refuses that offer, he or she may appeal the court’s grant of a new trial after the second trial (an expensive option).
Compensatory damages. The standard for a review of a jury verdict for excessiveness depends on the type of damages. For compensatory damages, a jury verdict is given a presumption of correctness. See Acevado v. Monroig, 351 F.3d 547, 566 (5th Cir. 2003). However, where the award “shocks the conscience of the Court,” it will be remitted. If there is compelling evidence presented showing that the verdict was the result of “passion or prejudice,” which has an effect both on liability and damages, this typically will require a new trial.
Punitive damages. A case involving punitive damages also can be challenged for excessiveness under the Due Process Clause of the U.S. Constitution and any state constitution or statute that places limits on punitive damages. If the trial court finds that the damages award is excessive under applicable guidelines, it may remit the damages award or order a new trial. The U.S. Supreme Court has enumerated specific factors that must be considered under such a challenge: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive-damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). As distinct from compensatory damages, there is to be no presumption given to the jury’s verdict. Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001). Additionally, a federal court sitting in diversity will follow the procedural rules of a state regarding punitive-damages review. This may include conducting a hearing where additional evidence may be presented in support of specific factors necessitating a remittitur of punitive damages.
Motion to Alter or Amend a Judgment—Rule 59(e)
A Rule 59(e) motion is a useful tool to challenge a judgment rendered in a non-jury case. These motions often are used in cases where judgment is rendered pursuant to summary judgment, and they may permit a movant to inject additional evidence or issues not previously considered. Rule 59(e) motions also are used where a judgment is rendered due to procedural default. Through a Rule 59(e) motion, the trial court is given an opportunity to review its decision, thus rendering the order (once reviewed) appealable.
Relief from a Judgment or Order—Rule 60
Rule 60(a)—Correction of clerical mistakes. A clerical error in the judgment can be corrected pursuant to Rule 60(a) by motion of a party or on the court’s own initiative. A trial court may seek (and nearly always obtain) leave to correct this type of error even after a notice of appeal has been filed. 11 Wright & Miller, Federal Practice and Procedure §§ 2856, 2871.
Rule 60(b)—Relief from a judgment due to excusable neglect, newly discovered evidence, fraud, etc. Rule 60(b) allows a trial court to grant relief from a judgment based on
- • mistake, inadvertence, surprise, or excusable neglect;
- • newly discovered evidence;
- • fraud, misrepresentation, or other misconduct of a party;
- • a void judgment;
- • satisfaction of the judgment or change in a judgment relied on by the court that rendered the judgment; or
- • any other reason justifying relief.
It is important to keep in mind that Rule 60(b) motions typically are considered exceptional relief, and unlike other post-trial motions pursuant to Rules 50 and 59, they do not toll the time for filing a notice of appeal (30 days after final judgment in federal court) except in the case of a Rule 60(b) motion filed in federal court within 28 days of the entry of the judgment. Fed. R. App. P. 4(a)(4)(vi).
This article serves as merely a preview of options that may be available to assist a client in reversing, remitting, or correcting a judgment. It is important to understand post-trial motions, as they can aid in building a record for appeal, but if misused or neglected, they can result in waiver of issues for appeal. While this article has focused on the Federal Rules of Civil Procedure, it is also important to be aware of specific state rules regarding post-trial motions, especially in regard to triggering dates for appeal to adequately protect a client’s rights.
Keywords: litigation, pretrial practice, discovery, post-trial motion, trial motions